State v. Robinson , 2013 Ohio 5672 ( 2013 )

[Cite as State v. Robinson, 2013-Ohio-5672.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
CASE NO. CA2013-05-085
Plaintiff-Appellee, :
OPINION
: 12/23/2013
- vs -
:
JOACHIM ROBINSON, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2007-11-1995
Michael T. Gmoser, Butler County Prosecuting Attorney, Michael A. Oster, Jr., 500 Justice
Drive, Lebanon, Ohio 45036, for plaintiff-appellee
Joachim Robinson, #656898, Lebanon Correctional Institution, P.O. Box 56, Lebanon, Ohio
45036, defendant-appellant, pro se
S. POWELL, J.
{¶ 1} Defendant-appellant, Joachim Robinson, appeals pro se from the Butler County
Court of Common Pleas decision denying his motion to withdraw his guilty plea. For the
reasons outlined below, we affirm.
{¶ 2} According to the bill of particulars, on January 8, 2006, Robinson, along with his
co-defendant, Christopher Stallworth, as well as another unnamed assailant, broke into the
Butler CA2013-05-085
Butler County residence of Andrew Donaby and Nicole Nesbitt. During this time, Donaby and
Nesbitt's infant son was also inside the home. Once inside, the trio bound Nesbitt and forced
her and her infant son to stay in a bedroom at gunpoint while they beat Donaby and doused
him with hot oil. The intruders ultimately fled from the scene in Donaby's vehicle with an
undisclosed sum of money and property.
{¶ 3} On December 5, 2007, while Robinson was in prison on unrelated charges, the
Butler County grand jury returned a 17-count indictment against Robinson stemming from his
role in the January 8, 2006 robbery. The indictment included charges of aggravated robbery,
aggravated burglary, kidnapping, complicity to felonious assault, grand theft, and having
weapons while under disability. After some delay, Robinson agreed to plead guilty to one
count of each of the above named charges with an agreed aggregate sentence of 15 years in
prison. The trial court accepted both the plea agreement and the agreed sentence at a
hearing on May 7, 2009. Robinson did not appeal from his conviction or sentence.
{¶ 4} On March 20, 2013, nearly four years after entering his guilty plea, Robinson
filed a pro se motion to withdraw his plea. As part of this motion, Robinson claimed he would
not have pled guilty were it not for the allegedly false statements made by Stallworth to the
police implicating him in the crime. Attached to Robinson's motion is an affidavit from
Stallworth, Robinson's co-defendant, who now alleges he was "coerced" by police into
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making "fabricated false statements" implicating Robinson.
{¶ 5} On April 30, 2013, the trial court issued its decision denying Robinson's motion
to withdraw his guilty plea. In so holding, the trial court found Robinson had failed to
establish the existence of a manifest injustice, thereby allowing him to withdraw his plea.
Robinson now appeals from the trial court's decision, raising three assignments of error for
1. This court affirmed Stallworth's conviction and sentence resulting from his role in the January 8, 2006 robbery
in State v. Stallworth, 12th Dist. Butler No. CA2009-07-202, 2010-Ohio-48.
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review. For ease of discussion, Robinson's three assignments of error will be addressed
together.
{¶ 6} Assignment of Error No. 1:
{¶ 7} THE TRIAL COURT ERRED IN DEFENDANT'S FIRST ASSIGNMENT OF
ERROR WHEN IT FAIL TO GIVE FINDINGS OF FACTS AND CONCLUSION OF LAW. [sic]
{¶ 8} Assignment of Error No. 2:
{¶ 9} THE TRIAL COURT ERRED IN DEFENDANT-APPELLANT'S SECOND
ASSIGNMENT OF ERROR WHEN TRIAL COURT FAIL TO ALLOWED DEFENDANT-
APPELLATE'S TO WITHDRAW HIS GUILTY PLEA ON THE BASIS NOT KNOWINGLY,
INTELLIGENTLY OR VOLUNTARILY MADE WHICH SHOW A PREJUDICIAL EFFECT.
[sic]
{¶ 10} Assignment of Error No. 3:
{¶ 11} THE TRIAL COURT ERRED IN DEFENDANT-APPELLANT'S THIRD
ASSIGNMENT OF ERROR WHEN IT FAIL TO MAKE FINDING OF FACTS AND
CONCLUSION OF LAW ON DEFENDANT-APPELLANT'S INEFFECTIVE-ASSISTANCE
CLAIMS. [sic]
{¶ 12} In his three assignments of error, Robinson argues the trial court erred by
denying his motion to withdraw his guilty plea. We disagree.
{¶ 13} Pursuant to Crim.R. 32.1, "a motion to withdraw a plea of guilty or no contest
may be made only before sentence is imposed; but to correct manifest injustice the court
after sentence may set aside the judgment of conviction and permit the defendant to
withdraw his or her plea." A defendant who seeks to withdraw a plea after the imposition of
sentence has the burden of establishing the existence of a manifest injustice. State v.
Williams, 12th Dist. Clermont No. CA2012-08-060, 2013-Ohio-1387, ¶ 11, citing State v.
Smith, 49 Ohio St.2d 261 (1977), paragraph one of the syllabus. In general, "manifest
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injustice relates to a fundamental flaw in the proceedings that results in a miscarriage of
justice or is inconsistent with the demands of due process." State v. Hobbs, 12th Dist.
Warren No. CA2012-11-117, 2013-Ohio-3089, ¶ 9. "The requirement of demonstrating a
manifest injustice is designed to discourage a defendant from pleading guilty to test the
weight of the potential reprisal, and later attempting to withdraw the plea if the sentence was
unexpectedly severe." Williams at ¶ 13. This sets forth an "extremely high standard" that is
"allowable only in extraordinary cases." State v. Hopkins, 12th Dist. Butler No. CA2012-12-
246, 2013-Ohio-3674, ¶ 9; State v. McMahon, 12th Dist. Fayette No. CA2009-06-008, 2010-
Ohio-2055, ¶ 6.
{¶ 14} The decision to grant or deny a motion to withdraw a guilty or no contest plea is
within the trial court's sound discretion. State v. Carter, 12th Dist. Clinton Nos. CA2010-07-
012 and CA2010-08-016, 2011-Ohio-414, ¶ 16. In turn, an appellate court reviews a trial
court's decision to deny a motion to withdraw a plea under an abuse of discretion standard.
State v. Ward, 12th Dist. Clermont No. CA2008-09-083, 2009-Ohio-1169, ¶ 8, citing State v.
Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, ¶ 32. An abuse of discretion connotes more
than an error of law or judgment; it implies that the trial court's attitude was arbitrary,
unreasonable, or unconscionable. State v. Kelly, 12th Dist. Butler No. CA2013-01-020,
2013-Ohio-3675, ¶ 20; State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 130.
{¶ 15} Throughout his three assignments of error, Robinson argues the trial court
erred by denying his motion to withdraw his guilty plea when it failed to provide findings of
fact and conclusions of law. However, "a trial court, when denying a motion to withdraw a
guilty plea, is not required to make and file findings of fact and conclusions of law." State v.
Johnson, 12th Dist. Butler Nos. CA2010-12-327 and CA2011-02-019, 2011-Ohio-3015, ¶ 14,
quoting State v. Combs, 11th Dist. Portage No. 2007-P-0075, 2008-Ohio-4158, ¶ 49; State v.
Davis, 158 Ohio App.3d 478, 2004-Ohio-5354, ¶ 16 (4th Dist.). In fact, as noted by the Ohio
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Supreme Court, "Crim.R. 32.1 does not require a court to issue findings of fact and
conclusions of law when ruling on a motion to withdraw a guilty plea." State ex rel. Chavis v.
Griffin, 91 Ohio St.3d 50, 51 (2001). Robinson's claim otherwise is therefore without merit
and overruled.
{¶ 16} Next, Robinson argues the trial court erred in denying his motion to withdraw
his guilty plea because his plea was not knowingly, intelligently and voluntarily made. The
basic tenets of due process require that a guilty plea be made "knowingly, intelligently, and
voluntarily." State v. Manis, 12th Dist. Butler No. CA2011-03-059, 2012-Ohio-3753, ¶ 10,
citing State v. Engle, 74 Ohio St.3d 525, 527 (1996). However, Robinson does not argue
that his guilty plea was not knowingly, intelligently, or voluntarily made due to the trial court's
failure to provide him with the necessary plea colloquy under Crim.R. 11(C). See generally
State v. Whitaker, 12th Dist. Preble No. CA2012-10-013, 2013-Ohio-4434, ¶ 9. Rather,
Robinson merely argues his guilty plea is invalid based on the so-called "new evidence" of
Stallworth's recantation of his prior statements to police implicating Robinson in the crime.
{¶ 17} Although the affidavit from Stallworth alleges Robinson was not involved in the
January 8, 2006 robbery, it is well-established that the "good faith, credibility, and weight of
the movant's assertions in support of the motion are matters to be resolved" by the trial court.
State v. McGlosson, 12th Dist. Butler No. CA2012-03-057, 2013-Ohio-774, ¶ 32. Moreover,
"Ohio courts have consistently held that affidavits from interested parties such as defendants,
co-defendants, and family members are self-serving and may be discounted." State v.
Nicholson, 8th Dist. Cuyahoga No. 97873, 2012-Ohio-4591, ¶ 19. The trial court, therefore,
could properly determine the affidavit from Stallworth, Robinson's co-defendant whose
conviction and sentence were already affirmed by this court on direct appeal, lacked
sufficient credibility.
{¶ 18} Furthermore, "recantations of prior witness statements must be examined with
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the utmost suspicion." State v. Linder, 8th Dist. Cuyahoga No. 99350, 2013-Ohio-5018, ¶ 14;
see also United States v. Chambers, 944 F.2d 1253, 1264 (6th Cir.1991) (stating "[r]ecanting
affidavits and witnesses are viewed with extreme suspicion"). This is especially true here
considering the significant lapse in time spanning nearly four years between when Robinson
entered his guilty plea and when he filed his motion to withdraw.
{¶ 19} Generally, "the delayed disclosure of a witness's recantation weighs against the
believability and truthfulness of the witness." Houston v. State, 8th Dist. Cuyahoga No.
98118, 2012-Ohio-4404, ¶ 41. As this court has consistently stated, "an undue delay
between the occurrence of the alleged cause for withdrawal of a guilty plea and the filing of a
motion under Crim.R. 32.1 is a factor adversely affecting the credibility of the movant and
militating against the granting of the motion." State v. Resendiz, 12th Dist. Preble No.
CA2009-04-012, 2009-Ohio-6177, ¶ 22, quoting Smith, 49 Ohio St.2d 261 at paragraph three
of the syllabus. In turn, just as the trial court found, the length of time here clearly militates
against the granting of Robinson's motion. See State v. Mootispaw, 12th Dist. Fayette No.
CA2004-02-007, 2005-Ohio-2372, ¶ 7.
{¶ 20} Robinson also claims he was steadfast in asserting his innocence, thereby
requiring the trial court to allow him to withdraw his guilty plea. However, besides Robinson's
bare assertions to the contrary, there is nothing in the record to support this claim. "A
defendant who has entered a guilty plea without asserting actual innocence is presumed to
understand that he has completely admitted his guilt." State v. Griggs, 103 Ohio St.3d 85,
2004-Ohio-4415, syllabus. In other words, by entering a guilty plea, Robinson not only stated
that he did the acts described in the indictment, but he also admitted guilt of the substantive
crime. State v. Fuller, 12th Dist. Butler No. CA2008-09-240, 2009-Ohio-5068, ¶ 105.
{¶ 21} As noted by the Eleventh District Court of Appeals, "a change in potential
testimony of a state's witness is insufficient to withdraw a plea postsentence." State v.
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Hudach, 11th Dist. Trumbull No. 2003-T-0110, 2004-Ohio-6949, ¶ 46. Therefore, we find
Robinson has failed to show how this so-called "new evidence" from Stallworth demands the
withdrawal of his guilty plea in order to prevent a manifest injustice. Robinson's argument to
the contrary is without merit and overruled.
{¶ 22} Finally, Robinson argues the trial court erred in denying his motion to withdraw
his guilty plea because he received ineffective assistance of counsel. Ineffective assistance
of counsel is a proper basis for seeking a post-sentence withdrawal of a guilty plea. State v.
Eberle, 12th Dist. Clermont No. CA2009-10-065, 2010-Ohio-3563, ¶ 56; State v. Mays, 174
Ohio App.3d 681, 2008-Ohio-128, ¶ 8 (8th Dist.). When an alleged error underlying a motion
to withdraw a guilty plea is the ineffective assistance of counsel, such as the case here, the
defendant must show (1) his counsel's performance was deficient and (2) that there is a
reasonable probability that, but for counsel's errors, he would not have pled guilty. State v.
Finkbine, 12th Dist. Warren No. CA2005-06-068, 2006-Ohio-1788, ¶ 7; State v. Xie, 62 Ohio
St.3d 521, 524 (1992). Counsel is strongly presumed to have rendered adequate assistance
and made all significant decisions in the exercise of reasonable professional judgment. State
v. Hendrix, 12th Dist. Butler No. CA2012-05-109, 2012-Ohio-5610, ¶ 14.
{¶ 23} In support of this claim, Robinson argues his trial counsel was ineffective when
he disregarded Robinson's claims of innocence and advised Robinson that he "would be
convicted and spend a lot of time in prison" if he declined the state's plea offer. However,
"an attorney's advice to take a plea deal is not ineffective assistance of counsel." See State
v. Shugart, 7th Dist. Mahoning No. 08 MA 238, 2009-Ohio-6807, ¶ 37. Rather, these alleged
deficiencies, even if true, constitute nothing more than counsel's attempts to provide
Robinson with informed advice, to relay worst case scenarios to him, and to make
recommendations to him on how to proceed. See Eberle, 2010-Ohio-3563 at ¶ 57. This
certainly cannot be classified as ineffective assistance of counsel.
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{¶ 24} Moreover, as part of his signed guilty plea, Robinson specifically acknowledged
that his trial counsel advised him of the impact of his guilty plea, that he understood the
ramifications of making such a plea, and that he was satisfied with counsel's advice and
competence. The trial court, therefore, did not abuse its discretion in declining Robinson's
request to withdraw his guilty plea based on his trial counsel's alleged ineffective assistance.
{¶ 25} In light of the foregoing, having found no merit to any of the claims advanced by
Robinson within his three assignments of error, we find the trial court did not abuse its
discretion in denying Robinson's motion to withdraw his guilty plea. See, e.g., State v.
Youngblood, 2d Dist. Montgomery No. 21078, 2006-Ohio-4390, ¶ 12 (finding claims of
ineffective assistance of counsel and witness recantation are not grounds to permit a
withdrawal of guilty plea). Accordingly, finding no error in the trial court's decision,
Robinson's three assignments of error are overruled.
{¶ 26} Judgment affirmed.
HENDRICKSON, P.J., and RINGLAND, J., concur.
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